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COMMUNICATION 


IN   RESPONSE  TO  A  VOTE  OF  THE 


HOUSE      OF      REPRESENTATIVES. 


TER,R,IT0R,i4L  LEQISL^TOR^E, 


PASSED   FEBRUARY  4tli,  1874, 


Jurisdiction  of  the  Probate  Courts 


Other  Matters  pertaining   to   Legal    Jurisdiction    and 
alleged  Malfeasance  of  certain  Officers, 


rHARGET)  BY 


HIS  EXCELLENCY,  THE  GOVERNOR, 


In  his  Message  of  the  4tli  Inst. 


David  O.  Caldek,  Pubi^ic  Printer,  Salt  Lake  City,  Utah. 


?^:f^i 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/connnnunicationofaOOsnowrich 


t)  Rf  ^^ 


COMMUNICATION 


OF 


;-    ATTORNEY-GENERAL  Z.  SNOW, 

cr 

^  In  response  to  a  i^ote  of  tlie  House  of  Representatives  of  the 

Territorial  Legislature^  p)^^^^^  F^^-  4,  1874, 
1 

r>^  ON    THE    JURISDICTIO]^     OF     THE    PEOBATE  COURTS,    AN^D  OTHER 

MATni:RS   PERTAINING  TO  LEGAL    JURISDICTION    AND    ALLEGED 

MAL-FEASANCE  OF   CERTAIN  OFFICERS,  CHARGED  BY  HIS  EXCEL- 

--|lENCY,   the   governor,    in  his  MESSAGE  OF  TUE  4TH  INST. 

O 
U 

X 
q 

g  AiTORNEY  General's  Office,  Salt  Lake  City, 

i^l  February  5th,  1874. 

'Honorable  Orson    Pratt,    Speaker    of    the    House    of 
Representatfves. 
Sir  : — Your  communication  of  the  4th  inst.,  came  duly  to 
hand.     You  say  the  House,  on  the  4th  inst.,  passed  the  follow- 
ing motion: — 

"I  move  that  the  Hon.  Judge  Snow,  Attorney-General  for 
this  Territory,  be  requested  to  furnish  this  House  with  his 
written  opinion  on  the  jurisdiction  of  the  Probate  Courts  of 
this  Territory,  and  such  other  matters  of  legal  jurisdiction  and 
alleged  malfeasance  of  certain  officers,  charged  by  his  Ex- 
cellency the  Governor,  in  his  special  message  vetoing  the 
memorial  to  Congress,  against  the  Legislative  Body,  as  en- 
couraged by  them,  and  practised  by  the  various  officers  of  the 
TeiTitory."  P^  8^  Q.  ^ 


By  this  motion  it  is  at  once  perceived  that,  to  understand 
what  is  desired,  the  message  must  be  examined. 

His  Excellency  the  Governor,  in  this  message,  uses  the 
following  language: — 

"And  in  view  of  the  fact  that  I,  as  Governor,  required  as  I 
am  by  the  Organic  Act,  and  by  my  official  oath,  to  see  'that 
the  laws  shall  be  faithfully  executed,'  have  been  continuously 
confronted  with  open  violations  of  the  laws  of  Congress,  with- 
out the  ability  to  enforce  obedience  thereto  because  of  defective 
and  inimical  legislation,  and  have,  as  duty  required,  repre- 
sented the  facts  to  Federal  authorities,  and  to  the  Legislative 
Assembly  of  the  Territory.  To  ask  or  expect  me  to  join  you 
in  condemning  my  own  o'licial  acts,  by  x)ronouncing  them 
^absolutely  untrue,'  and  made  'with  malicious  intent,'  is  a  sad 
commentary  upon  the  Judgment  and  good  taste  of  those  who 
ask  it.    That  I  cannot  do  so  is  certain. 

"The  charge  that  there  exists  'insubordination  and  other 
violations  of  the  Constitution  and  laws  of  the  United  States,' 
in  this  Territory,  is  true  or  false.  Let  the  facts  be  submitted. 
All  will  agree  that  the  iinal  object  of  the  government  is  the 
protection  of  the  citizen  in  his  rights. 

"That  the  laws  of  this  Territory,  as  they  now  stand,  are 
inadequate  to  accomplish  that  end,  cannot  be  denied. 

"There  has  not  been  a  jury  impanelled  in  this  Territory  for 
more  than  three  years,  whose  verdict  would  have  been  valid, 
nor  can  there  be  under  the  laws  now  in  force.  Such  are  the 
decisions  of  the  District  and  Supreme  Courts  of  the  Territory, 
and  such,  therefore,  is  the  law.  Life,  liberty  and  property  are 
at  the  mercy  of  the  lawless  and  dishonest,  without  the  possibility 
of  protection.  You  have  been  called  upon  to  furnish  the 
remedv.  The  power  to  do  so  is  in  our  hands.  If  we  do  not 
give  the  needed  legislation.  Congress  must,  or  anarchy  will 
ensue. 

"Again;  In  the  7th  section  of  the  Act  organizing  the  Terri- 
tory, Congress  gave  to  the  Governor  the  power,  by  and  with 
the  advice  and  consent  of  the  Legislative  Council,  to  appoint 
all  officers  above  the  grade  of  county  officers.  In  disregard  of 
the  rights  thus  conferred  upon  the  Governor,  the  Legislative 
Assembly,  by  enactment,  have  usurped  that  power,  by  making 
all  such  officers  elective  by  the  joint  vote  of  the  two  houses  of 
that  body,  independent  of  the  Governor.  That  this  usurpation 
has  caused  much  of  the  existing  difficulty  and  confusion, 
cannot  be  questioned  :  In  my  message  to  the  Legislative  As- 
sembly, at  its  last  session,  I  called  special  attention  to  these 
obnoxious  statutes,  asking  their  repeal,  and  the  enactment  of 
laws  upon  that  subject  which  would  be  in  conformity  with  the 
Organic  Act.  But  my  recommendations  went  for  naught ;  and 
the  persons  thus  ill^^g.illj'  elected,  Including  all  of  the  Tenitor- 


3 

lal  officers,  were  continued  and  are  now  in  office,  in  effect 
obstructing  the  administration  of  justice,  and  preventing  the 
correction  of  existing  evils. 

"Again :  It  has  been  repeated!}^  held  by  the  District  Courts, 
and  affirmed  by  the  Supreme  Court  of  the  Territory,  that  the 
Probate  Courts,  under  the  Organic  Act,  have  no  equity  or 
criminal  jurisdiction,  and  yet,  in  contempt  of  such  decision, 
the  Probate  Courts  throughout  the  Territory  exercise  a  jurisdic- 
tion concurrent  with  the  District  Courts;  determining  questions 
in  equity,  issuing  writs  of  habeas  corpus^  in  some  instances 
discharging  persons  held  by  the  District  Courts  for  felonies  not 
bailable,  and  impanelling  Grand  Juries,  and  putting  persons 
upon  trial  for  liberty  and  life. 

"Again :  In  1862  the  Congress  of  the  United  States  enacted 
a  law  making  plural  marriage  a  crime.  And  yet  it  cannot  be 
denied  that  plural  marriage  is  now  practiced  to  a  great  extent 
in  this  Territory,  in  direct  violation  of  that  law.  It  is  not 
su^cient  to  sav  that  the  law  is  unconstitutional.  The  Supreme 
Court  of  the  United  States  has  not  so  decided.  Until  that  is 
done,  it  is  the  law  of  the  land,  and  should  be  obeyed. 

"In  my  message  to  the  Legislative  Assembly  at  its  session 
in  1872,  I  called  attention  to  the  violations  of  this  act,  and 
urged  the  enactment  of  a  law  prohibiting  it  in  the  future.  But, 
I  regret  to  say,  nothing  was  done.  Can  we,  in  truth,  state  that 
no  law  of  the  United  States  is  violated  in  Utah,  or  ask  Congress 
to  investigate,  and  inquire  into  the  truth  of  that  which  no  one 
denies  ?  I  can  not. 

"Again ;  It  is  well  known  that  a  large  number  of  homi- 
cides have  been  committed  in  this  Territory;  and,  in  many 
instances,  no  attempt  to  bring  the  persons  charged  with  such 
crimes  to  trial  has  been  made.  Indeed  such  are  the  defects  of 
the  laws  that  no  legal  conviction  can  be  had." 

From  this  and  from  the  motion,  I  am  to  give  a  written 
opinion,  or  fail  to  comply  with  the  reijuest. 

It  appears  to  me  that  an}^  opinion  I  have  or  may  give  is 
only  extra  official,  as  neither  his  Excellency  nor  the  Courts  nor 
the  Legislature  are  bound  by  it,  and  much  less  is  Congress. 

Notwithstanding  this,  I  deem  it  a  duty  to  say  that  during 
my  short  official  career  as  Attorney- General,  I  have,  as  often  as 
required,  expressed  opinions  on  legislative,  judicial  and  ex- 
ecutive power,  the  harmonious  working  of  all  which  is  essential 
to  good  order  in  any  government. 

But  before  entering  on  the  subject  of  my  views  as  to  the 
jurisdiction  of  the  Probate  Courts,  in  civil  and  criminal  cases, 
and  the  subject  of  the  election  and  appointment  of  officers  for 


the  Territory,  I  will  lay  down  a  few  rules  which  commend 
themselves  to  me. 

First — An  Act  of  the  Legislative  Department,  within  its 
legislative  powers,  is  absolute.  It  is  the  law,  and  all  within  its 
provisions  are  bound  by  it.  But  it  may  be  ambiguous,  un- 
certain, and  difficult  to  understand,  by  reason  of  accident  or 
omission.  It  then  has  to  be  construed  or  interpreted.  If  it  is 
not  within  their  legislative  powers,  the  act  is  void. 

Seco^^d — The  judgment  of  a  court  of  original  jurisdiction, 
in  a  case  when  it  has  jurisdiction  of  the  subject  matter  of  the 
suit  and  of  the  person,  is  the  law  of  that  case,  however 
erroneous,  unless  on  appeal  or  writ  of  error  it  be  reversed,  but 
it  does  not  establish  a  principle. 

TiiiKD — The  Judgment  of  a  Supreme  Court,  that  being  a 
court  of  last  resort,  is  conclusive,  it  is  binding  on  all.  It  is 
equally  as  binding  on  the  Governor  and  President  and  the 
Legislature  as  on  individuals  and  other  courts.  It  settles  that 
case,  and  it  also  settles  the  principles  upon  which  future 
analagous  cases  are  to  be  governed,  until  the  law  be  changed 
or  the  case  overruled. 

Fourth — The  act  of  the  President  or  the  Governor  in  his 
gubernatorial  authority,  and  within  his  lawful  powers,  is  also 
binding  on  all. 

By  a  little  reflection  it  will  be  perceived  that  it  may  some- 
times happen  that  powers  conflict,  particularly  among  legisla- 
tive departments  like  Congress  and  the  States  and  Territories, 
and  their  statutes  seemingly  conflict.  These  involve  very 
intricate  questions.  Whenever  they  are  met,  they  must  be 
solved,  and  a  conflict  of  views  will  always  arise,  denoting,  as  I 
think,  healthy  action. 

On  a  correct  understanding  of  these  three  powers  depends 
the  solution  of  this  entire  matter. 

Whenever  either  of  these  three  branches  of  government, 
whether  through  error  of  judgment,  or  by  accident,  or  by 
design,  paralyzes  any  other  branch,  a  jar  in  the  machinery 
ensues. 

The  opinions  I  entertain  on  these  subjects,  being  the  right 
of  electing  or  appointing  officers,  and  the  right  to  confer  on  the 
Probate  Courts,  civil  and  criminal  jurisdiction,  have  long  since 
been  expressed  and  given  to  the  public,  which  remain  un- 


changed.    No  recent  argument  has  thrown  any  light  on  the 
subject. 

His  Excellency,  the  Governor,  in  his  message  on  this  point, 
has  not  even  indicated  an  opinion,  much  less  expressed  it.  His 
language  is,  "It  has  been  repeatedly  held  by  the  District 
Courts  and  affirmed  by  the  Supreme  Court  of  the  Territory 
that  the  Probate  Courts  under  the  Organic  Act,  have  no  equity 
or  criminal  jurisdiction,  and  3^et,  etc."  Whoever  examines  the 
9th  section  of  that  act  will  lind  that  the  Organic  Act  does  not 
attempt  to  create  or  J  give  jurisdiction  of  any  kind  to  the 
Probate  Courts,  but  only  authorizes  their  creation  by  the  Ter- 
ritorial government,  and  authorizes  their  jurisdiction  to  be 
conferred. 

The  language  of  the  Act  in  section  6,  is,  *^The  Legislative 
power  of  said  Territory  shall  extend  to  all  rigMful  subjects  of 
legislation  consistent  with  the  Constitution  of  the  United  States 
and  with  this  Act"  Then  follow  a  few  inhibitions,  but  none 
on  the  subject  of  the  jurisdiction  of  the  court.  In  section  9, 
before  referred  to,  the  language  is,  "The  jurisdiction  of  the 
several  courts  herein  provided  for,"  (meaning  the  Supreme, 
District  and  Probate  Courts,  and  Justices  of  the  Peace,)  "both 
appellate  and  original,  and  that  of  the  Probate  Courts  and 
Justices  of  the  Peace,  shall  be  as  limited  by  law. 

At  that  time  there  was  no  provision  in  any  law  of  Congress, 
nor  is  there  yet  any  provisions,  applicable  to  the  jurisdiction 
of  the  Probate  Courts  in  this  Territory.  The  inference  therefore 
is  irresistible  that  the  words  "limited  by  law,"  meant  a  law  of 
the  Territory. 

The  Act  of  Utah,  creating  the  Probate  Courts,  and  pre- 
scribing their  jurisdiction,  was  approved  February  4th,  1852, 
and  is  as  follows : 

''Sec.  23. — There  shall  be  a  Judge  of  Probate  in  each 
county  within  the  Territory,  whose  jurisdiction  within  his 
court,  in  all  cases,  arises  within  their  respective  counties  under 
the  laws  of  the  Territory;  said  Judge  shall  be  elected  hj  the 
joint  vote  of  the  Legislative  Assembly,  and  commissioned  by 
the  Governor,  they  shall  hold  their  offices  for  the  term  of  one 
year,  and  until  their  successors  are  elected  and  qualified. 
They  shall  be  qualified  and  sworn  by  any  person  authorized  to 
administer  oaths,  and  give  bonds  and  security  in  the  sum  of 
not  less  than  ten  thousand  dollars,  to  be  approved  by  the 
Auditor  of  Public  Accounts;  and  the  Auditor  shall  give  the 


person  filing  bonds  a  certificate  that  such  bond  has  been 
approved  by  him  and  liled  in  his  office." 

The  jurisdiction  is  thus  defined — 

"Sec.  27.— The  Judge  of  Probate  has  jurisdiction  of  the 
Probate  of  Wills,  the  administi-ation  of  the  estates  of  deceased 
persons,  and  of  the  guardianship  of  minors,  idiots  and  insane 
persons. 

"Sec.  28. — The  Probate  records  shall  be  kept  in  books 
separate  from  those  of  the  other  business  of  the  court. 

"Sec.  29. — The  several  Probate  courts  in  their  respective 
counties  have  power  to  exercise  original  jurisdiction  both  civil 
and  criminal,  and  as  well  in  Chancery  as  at  Common  law,when 
not  prohibited  by  legislative  enactment;  and  they  shall  be  gov- 
erned in  all  respects  by  the  same  general  rules  and  regulations 
as  regards  practice  as  the  District  courts." 

The  act  also  provides  for  a  sheriff,  a  clerk,  a  seal  of  court,, 
and  the  keeping  of  a  record,  also  for  grand  and  petit  juries, 
giving  them  all  the  Common  law  requisites  of  a  Court  of 
Record,  with  appeals  to  the  District  Courts. 

By  this  your  honors  will  see  that  the  jurisdiction  of  the 
Probate  Courts  depends  not  on  the  Organic  Act,but  in  the  laws 
of  Utah,  passed  pursuant  to  the  authority  therein  given.  And 
the  only  questions  are — did  the  legislature  of  Utah,  in  1852,  ex- 
ceed its  legislative  power  in  conferring  law  and  equity  jurisdic- 
tion on  these  courts,  or  has  Congress  given  this  jurisdiction  by 
authorizing  the  Legislature  to  confer  it  under  the  maxim  of  law 
that  what  one  does  by  an  other,  he  does  by  himself,or  has  Con- 
gress, by  not  disapproving  the  act,  affirmed  it? 

These  all  are  principles  entering  into  the  solution  of  the 
proposition.  In  relation  to  them  the  Hon.  John  Titus,  in  the 
case  of  Tiernan  against  Salt  Lake  City,  in  1865,  said,  "The 
power  reserved  in  Congress  by  itself  to  disapprove  devolves 
upon  that  body  the  duty  of  revising  the  legislative  acts  of  Utah, 
and  the  presumption  as  cited  is,  that  this  duty  is  performed. 
Congress,  therefore,  not  having  disapproved,  must  be  presumed 
to  have  approved  the  act."  This  was  decided  concerning  an 
act  which  had  been  passed  only  about  six  years.  The  act  on 
the  subject  of  the  Probate  Court  jurisdiction  was  passed  twenty- 
two  years  ago,  and  Congress  has  not  yet  disapproved  it. 

The  Supreme  Court  of  the  United  States  in  the  case  of  the 
Miners'Bank  vs,  Iowa,  12.  Howe  pp.  48,  expressly  sanctioned 
the  doctrine  that  a  Territorial  law  was  valid  until  or  unless  dis- 


approved  by  Congress.  The  court  was  unanimous  in  the  deci- 
sion. The  Supreme  Court  of  the  United  States,  in  the  case  of 
Clinton,  vs,  Englebrecht,  from  this  Territory,  13.  Wall.  p.  445-6, 
unanimously  said,  the  Chief  Justice  speaking  for  the  whole 
court — 

"It  is  insisted,  however,  that  the  jury  law  of  Utah  is  defec- 
tive in  two  particulars.  First,  that  it  requires  the  jury  list  to  be 
selected  by  the  County  Court,  upon  which  the  Organic  law  did 
not  permit  authority  for  that  purpose  to  be  conferred.  Second, 
that  it  requires  the  jury  to  be  summoned  by  the  Territorial 
marshal,  who  was  elected  by  the  legislature  and  not  appointed 
by  the  Governor.  We  do  not  see  how  these  facts,  if  truly 
alleged,would  make  the  mode  actually  adopted  for  summoning 
the  jury  in  this  case  legal.  But  we  will  examine  the  objec- 
tions. 

"In  the  first  place,we  observe  that  the  law  has  received  the 
implied  sanction  of  Congress.  It  was  adox)ted  in  1859."  "[This 
Probate  law,  you  remember,  was  adopted  in  1852.]  "It  has  been 
upon  the  Statute  book  for  more  than  twelve  years."  [The  Pro- 
bate jurisdictional  law  has  been  on  the  Statute  for  more  than 
twenty-two  years.]  "It  must  have  been  transmitted  to  Congress 
soon  after  it  was  enacted,  for  it  was  the  duty  of  the  Secretary  of 
the  Territory  to  transmit  to  that  body  copies  of  all  laws  on  or 
before  the  1st  of  December  in  each  year.  The  simple  disap- 
proval by  Congress  at  any  time  would  have  annulled  it.  It  is 
no  unreasonable  inference,  therefore,  that  it  was  aj)proved  by 
Congress." 

True,  this  language  was  used  concerning  the  jury  law,  but 
it  is  equally  applicable  to  the  law  creating  the  Probate  Couits, 
and  fixing  and  setting  bounds  to  their  jurisdiction. 

The  Supreme  Court  in  that  case  examined  the  jury  law  of 
Utah  and  held  it  valid. 

How  then  stands  so  much  of  this  matter  as  relates  to  the 
validity  of  the  jury  law  in  the  Courts? 

First,  the  Governor  and  Legislative  Assembly  of  Utah,  in 
1859,  in  construing  their  legislative  x^owers,  passed  the  act, 
which  was  acted  upon  from  that  time  till  1870,  by  every  legisla- 
ture, and  every  governor,  and  every  judge  on  the  bench.  In 
1870  the  CO  irts  here  ruled  against  it.  In  1872,  on  appeal,  the 
Supreme  Court  of  the  United  States  in  the  very  case  w^here  the 
decision  had  been  made  in  our  courts  unanimously  sustained 


8 

our  jury  law,  and  said  in  its  decision,  when  speaking  con- 
cerning the  court  here,  "we  are  of  the  opinion  the  court 
erred  both  in  its  theo./  and  in  its  action." 

But  before  this  decision,  there  were,  and  still  are  coniiict- 
ing  views  on  the  subject  of  the  civil  and  criminal  jurisdiction  of 
the  Probate  Courts.  The  legislatures  of  the  following  Territo- 
ries have  so  construed  their  legislative  powers,  as  to  give  civil 
and  criminal  jurisdiction  to  their  Probate  Courts  to  a  limited 
extent,  niz.^  Kansas,  Montana,  Idaho,  Oregon,  and  Utah.  The 
judges  of  Kansas,Montana  and  Idaho  have  held  that  the  Legis- 
lature exceeded  their  powers  when  they  conferred  it. 

In  a  few  instances  Congress,  after  the  decisions  above 
alluded  to,  conferred  on  the  Probate  Courts  in  those  Territories 
a  limited  civil  jurisdiction. 

In  Utah  the  course  has  been  in  the  Legislative  department 
one  uniform  sentiment,  so  far  as  the  members  of  the  two  houses 
are  concerned. 

But  the  governors  and  judges  have  not  bad  a  uniform 
sentiment  on  this  question. 

From  1852  to  1856,  the  jurisdictions  of  the  Probate  Courts 
was  not  called  in  question  in  such  a  form  as  to  require  the 
Court  to  decide  it. 

In  1856,  at  Carson  Valley,  then  a  part  of  Utah,  Jugde 
Drummond  held  that  the  Probate  Courts  had  not  civil  juris- 
diction. 

From  1836  to  1859  or  1860,  the  question  was  not  decided, 
BO  far  as  I  know  or  have  the  means  of  learning. 

In  1859  or  1860  Judges  Ecles,  Cradlebaugh  and  Sinclair 
held  each,  informally  in  some  cases,  that  these  courts  had  not 
either  civil  or  criminal  jurisdiction. 

From  1860  or  1861  to  1869  or  1870,  these  courts,  without 
ever  testing  it  in  any  district  except  the  Third,  exercised  both 
civn  and  criminal  jurisdiction,  as  provided  by  our  law. 

In  1861  the  Supreme  Court  of  this  Territory  held  that  the 
Probate  Courts  of  the  Territory  had  jurisdiction  under  our 
law  in  divorce  cases. 

In  1870  the  Supreme  Court  of  this  Territory  held  that  our 
Probate  Courts  had  not  jurisdiction  in  divorce  cases. 

In  1865  the  District  Court  of  the  Third  Judicial  District 
held  that  the  Probate  Courts  of  the  Territory  had,  under  our 


law,  civil  and  criminal  jurisdiction,  and  that  they  had  authoritj^ 
to  grant  naturalization  papers  to  foreigners. 

From  18.02  to  1870  no  case  was  taken  to  the  Supreme 
Court  of  the  Territory,  that  has  fallen  under  my  notice,  in 
which  it  was  necessary  to  decide  whether  or  not  the  Probate 
Courts  of  the  Territory  had  either  civil  or  criminal  jurisdiction. 

In  1870  a  civil  case  w^as  removed  from  the  Probate  Court 
of  the  County  of  Salt  Lake  to  the  District  Court  of  the  Third 
Judicial  District  in  this  Territory,  in  which  the  point  of  its  civil 
jurisdiction  was  raised.  The  District  Court  decided  against  it. 
The  case  was  taken  to  the  Supreme  Court  of  the  Territory  and 
by  that  court  the  judgment  was  affirmed.  This  being  the  only 
case  ever  decided  in  the  Supreme  Court  of  the  Territory,  in- 
volving that  question,  it  was  removed  by  writ  of  error  to  the 
Supreme  Court  of  the  United  States,  and  in  March  last  it  was 
argued  in  that  court.    It  has  not  yet  been  decided. 

No  case  or  class  of  cases  can  be  considered  as  settling  a 
principle  until  the  case  or  cases  have  been  considered  on 
argument  in  the  court  of  last  resort,  which,  on  this  Probate 
Court  jurisdiction  question,  is  the  Supreme  Court  of  the  United 
States. 

But  when  there  is  such  a  conflict  of  opinion,  the  case, 
until  settled,  ought  to  be  treated  modestly. 

If  the  decision  of  the  Supreme  Court  of  the  United '  States 
shall  be  in  favor  of  the  civil  and  criminal  jurisdiction  of  the 
Probate  Courts,  as  given  by  our  law,  it  will  not  settle  any  thnig 
concerning  it  except  that  it  was  a  rightful  subject' of  Territorial 
legislation.  Its  wisdom  or  its  folly  will  not  enter  into  the  con- 
sideration, but  it  will  bind  the  President,  our  Governor  and 
Judges,  and  Congress  and  your  Honors.  It  will  leave  Congress 
to  disapprove  the  law  and  the  Legislature  of  this  Territory  to 
amend  it,  or  not. 

If  it  be  unwise  to  give  them  so  extensive  powers  as  they 
now  have,  and  I  think  it  is,  their  jurisdiction  can  be  modified 
by  your  Honors.  But  with  the  view  of  his  Excellency  on  the 
subject,  if  I  understand  his  views,  he  could  not  approve  of 
anything  on  the  subject,  but  an  unconditional  repeal  of  the 
law,  and  the  Legislative  Assembly,  without  renouncing  its  doc- 
trine of  twenty-two  3^ears'  standing,  could  not  repeal  it. 

If  the  Supreme  Court  decides  against  it,  it  will  show  that 
your  Honors  misunderstood  jouv  legislative  powers  when  the 


10 

act  was  passed,  and  that  these  courts  and  the  people  who  have 
resorted  to  them,  have  been  wrong  for  twenty-two  years,  and 
that,  adhering  to  them,  we  are  still  wrong.  Such  are  the 
momentous  (questions  involved. 

The  cases  are  scarce  in  which  more  important  questions  are 
to  be  settled  in  every  point  of  view,  and  the  consequence  flow- 
ing from  the  decisions  for  weal  or  for  woe  will  not  end  in 
twenty-two  years  more. 

On  the  right  of  electing  or  appointing  officers.  There  was 
a  case  of  the  United  States  against  myself,  in  the  Third  District 
Court,  in  which  the  United  States,  on  the  relation  of  its  Attor- 
ney for  Utah,  alleged  that  ''Mr.  C.  H.  Hempstead  was,  on  the 

day  of  April,  1870,  the  Attorney  of  the  United  States  for 

Utah.  That  among  the  duties  of  the  office  was  the  duty  to 
prosecute  in  the  several  counties  of  the  several  districts  of  said 
Territory ,  all  persons  accused  of  offences,  as  well  against  the 
laws  of  the  United  States  as  against  the  laws  of  the  Territory. 

"That  on  the  12th  day  of  September,  1870,  one Zerubbabel 
Snow,"  [myself],  "under  color  of  some  election  of  said  Terri- 
tory of  Utah  and  appointment  and  commission  thereunder,  as 
Attorney- General  of  said  Territory,  without  legal  right,  and 
well  knowing  the  premises,  did  unlawfully  usurp  some  of  the 
functions  of  the  said  relator''''  [Major  Hempstead]. 

"The  said  Z.  Snow  claiming  to  be  the  lawful  prosecutor  in 
the  District  Court  of  the  Third  Judicial  District  for  offences 
against  the  laws  of  said  Territory,  did  unlawfully  enter." 

To  this  I  answered  that  "Congress  had  power  to  confer 
on  the  inhabitants  of  the  Territory,  the  power  to  enact  laws 
which  belong  to  a  State,  in  the  capacity  of  a  State,  and  that  by 
the  Organic  act.  Congress  conferred  full  powers  of  legislation 
as  a  State  upon  the  inhabitants  of  this  Territory.  That  among 
these  powers  is  the  right  to  create  the  office  of  Attorney-General 
for  the  Territory  and  prescribe  his  duties.  That  pursuant  to 
the  act  entitled  'an  Act  in  relation  to  Marshals  and  Attorneys,' 
approved  March  ii,  1852, 1,  on  the  19th  day  of  January,  1869, 
was  duly  elected  by  the  joint  vote  of  both  houses,  then  in  joint 
session,  to  the  oSice  of  Attorney-General  of  the  Territory." 

Then  followed  the  averments  of  my  qualifying  as  provided 
by  law. 

To  this  there  was  a  demurrer.  The  courts  in  Utah  rendered 
judgment  against  me.    I  took  it  to  the  Supreme  Court  of  the 


11 

United  States.  That  court  unanimously  reversed  the  judgment 
of  our  courts  and  sustained  me  in  the  office.  I  beg  leave  to  file 
the  opinion  of  the  Supreme  Court  for  the  information  of  the 
House — 

SUPREME  COURT  OF  THE  UNITED  STATES. 


"No.  30.— October  Term,  1873. 


"Zerubbabel  Snow,  Plaintiff  in  Error,  )  In  error  to  the  Sup- 

vs.  >■     reme  Court  of  the 

"The  United  States,  ex  rel.  Charles  H.  )      Territory  of  Utah. 
Hempstead,  U.  S.  District  Attorney. 

"Mr.  Justice  Bradley  delivered  the  opinion  of  the  Court. 

"The  only  question  raised  in  this  case  is,  whether,  in  the 
Territory  of  Utah,  the  attorney  of  the  United  States  for  said 
territory,  or  the  attorney-general  of  said  territory  elected  by  the 
legislature  thereof,  is  entitled  to  prosecute  persons  accused  of 
offences  against  the  laws  of  the  territory. 

"The  government  of  the  territories  of  the  United  States  be- 
longs, primarily,  to  Congress;  and  secondarily, to  such  agencies 
as  Congress  may  establish  for  that  purpose.  During  the  term 
of  their  pupilage  as  territories,  they  are  mere  dependencies  of 
the  United  States.  Their  people  do  not  constitute  a  sovereign 
power.  All  political  authority  exercised  therein  is  derived  from 
the  general  government. 

"It  is,  indeed,  the  practice  of  the  government  to  invest 
these  dependencies  with  a  limited  power  of  self-government  as 
soon  as  they  have  su^iicient  population  for  the  purpose.  The 
extent  of  the  powder  thus  granted  depends  entirely  upon  the 
organic  act  of  Congress  in  each  case,  and  is  at  all  times  subject 
to  such  alterations  as  Congress  may  see  fit  to  adopt. 

"The  organic  act  establishing  the  territorial  government  of 
Utah,  passed  September  9th,  1850,  constituted  a  governor,  a 
legislative  assembly,  and  certain  courts,  and  judicial  and  ex- 
ecutive officers.  Amongst  the  latter  are  an  attorney  for  the 
territory,  and  a  marshal. 

"By  the  Cth  section  of  the  act,  it  is  enacted  that  the  legis- 
lative power  shall  extend  to  all  rightful  subjects  of  legislation 
consistent  with  the  Constitution  of  the  United  States  and  the 
provisions  of  that  act.  By  the  9th  section,  if  is  enacted  that 
the  judicial  power  shall  be  vested  in  a  supreme  court,  district 
courts,  probate  courts,  and  justices  of  the  peace,  whose  juris- 
diction shall  be  limited  by  law;  Provided,  that  justices  shall 


12 

not  tiy  land  titles,  nor  cases  exceeding  one  hundred  dollars  in 
amount;  and  tint  tli3  sux)reme  and  district  courts  shall  possess 
chancery  as  well  as  common  law  jurisdiction;  and  each  of  the 
district  courts  is  invested  Avith  the  same  jurisdiction  in  cases 
arising  under  the  Constitution  and  laws  of  the  United  States  as 
is  vested  in  the  circuit  and  district  courts  of  the  United  States; 
and  the  lirst  six  days  in  each  term  are  appropriated  to  such 
cases. 

"The  duties  of  the  attorney  are  not  specified  in  the  act. 
The  marsh  il  is  required  to  execute  all  processes  issuing  from 
said  courts  when  exercising  their  jurisdiction  as  circuit  and 
district  courts  of  the  United  States. 

"This  recital  shows  that  the  business  of  these  courts, 
when  acting  as  circuit  and  district  courts  of  the  United  States, 
is  to  be  kept  distinct  from  their  business  as  ordinary  courts  of 
the  territory;  and  gives  countenance  to  the  idea  upon  which 
the  territorial  legislature  seems  to  have  acted  in  appointing 
separate  executive  officers  for  attending  the  courts  when  sitting 
as  territorial  courts.  By  an  act  of  that  legislature,  passed 
March  3d,  1852,  it  is,  amongst  other  things,  provided  that  an 
attorney-general  shall  be  elected  by  the  legislative  assembly  to 
attend  to  all  legal  business  on  the  part  of  the  territory  before 
the  courts  where  the  territory  is  a  party,  and  to  prosecute  indi- 
viduals accused  of  crime  in  the  judicial  district  in  which  he 
shall  keep  his  oTice,  in  cases  arising  under  the  laws  of  the 
territory;  and  that  for  the  other  districts,  district  attorneys 
shall  be  elected  in  like  manner  with  like  duties.  This  law, 
it  is  understood,  has  always  been  acted  upon  until  the  recent 
decision  of  the  Supreme  Court  of  Utah,  denying  its  validity. 
Similar  laws  have  been  passed  and  acted  upon  in  other  territories, 
organized  under  similar  organic  acts.  The  attorney  appointed 
by  the  President  for  the  territory  has  been  accustomed  to 
attend  to  the  business  of  the  general  government,  the  same  as 
is  done  by  United  States  district  attorneys  in  the  several  States: 
and  the  attorney-general  and  district  attorneys  of  the  territory 
have  attended  to  the  business  of  the  latter,  and  prosecuted 
crimes  committed  against  the  territorial  laws. 

"It  must  be  confessed  that  this  practice  exhibits  somewhat 
of  an  anomaly.  Strictly  speaking,  there  is  no  sovereignty  in  a 
territory  of  the  United  States  but  that  of  the  United  States  itself. 
Crimes  committed  therein  are  committed  against  the  government 
and  dignity  of  the  United  States.  It  would  seem  that  indict- 
ments and  writs  should  regularly  be  in  the  name  of  the  United 
States,  and  that  the  attorney  of  the  United  States  was  the 
proper  oUcer  to  prosecute  all  offences.  But  the  practice  has 
been  otherwise,  not  only  in  Utnh,  but  in  other  territories 
organized  upon  the  same  type.  The  question  is  whether  this 
practice  is  legal,  or  in  other  words,  w^hether  the  act  of  the  ter- 
ritorial legislature  was  authorized  by  the  organic  act.     If  it 


13 

was,  the  plaintiff  in  error  in  this  case  was  erroneously  ousted 
from  performing  the  duties  of  his  o^ce  of  attorney-general  of 
the  territory. 

"The  power  given  to  the  legislature  is  extremely  broad. 
It  extends  to  all  rightful  subjects  of  legislation  consistent 
with  the  Constitution  and  the  organic  act  itself.  And  there 
seems  to  be  nothing  in  either  of  these  instruments  which 
directly  conflicts  with  the  territoriaJ  law.  If  there  is  any  in- 
consistency at  all,  it  is  in  that  part  of  the  organic  act  which 
provides  for  the  appointment  by  the  President  of  an  attorney 
for  the  territory.  But  is  that  necessarily  an  inconsistency  ? 
The  proper  business  of  that  attorney  may  be  regarded  as 
relating  to  cases  in  which  the  government  of  the  United  States 
is  concerned.  The  analogous  case  of  the  marshal,  and  the 
separation  of  the  business  of  the  courts  as  to  government  and 
territorial  cases,  seem  to  give  some  countenance  to  this  idea. 
At  all  events,  it  has  sufficient  basis  for  its  support  to  establish 
the  conclusion  that  there  is  no  necessary  conflict  between  the 
organic  and  the  territorial  laAvs.  The  organic  act  is  suscept- 
ible of  a  construction  that  will  avoid  such  conflict.  And  that 
construction  is  supported  by  long  usage  in  this  and  other 
territories.  Under  these  circumstances  it  is  the  duty  of  the 
court  to  adopt  it,  and  to  declare  the  territorial  act  valid.  In 
any  event,  no  great  inconvenience  can  arise,  because  the  entire 
matter  is  subject  to  the  control  and  regulation  of  Congress. 

"The  judgment  of  the  Supreme  Court  of  Utah  must  be 
reversed. 

"D.  W.  IVlTDDLETOIV,  C.  S.  C.  U.  S." 

The  Act  of  the  Governor  and  Legislative  Assembly  of  this 
Territory,  approved  March  3, 1852,  has  the  following — 

''An  ACT  in  relation  to  Marshals  and  Attorneys. 

"Sec.  1. — Be  it  enacted  by  the  Governor  and  Legislative 
Assembly  of  the  Territory  of  Utah:  That  a  Marshal  shall  be 
elected  by  a  joint  vote  of  both  Houses  of  the  Legislative  As- 
sembly, whose  term  of  o^ce  shall  be  one  year,  unless  sooner 
removed  by  the  Legislative  Assembly,  or  until  his  successor  is 
elected  and  qualified.  Said  Marshal  shall,  before  entering  upon 
the  duties  of  his  office,  take  an  oath  of  olficc,  and  file  bonds 
in  the  penal  sum  of  not  exceeding  twenty  thousand  dollars, 
conditioned  for  the  faithful  discharge  of  his  duties,  which  bond 
with  securities  is  to  be  approved  by  the  Secretary  of  the  Terri- 
tory, and  filed  in  his  office. 

"Sec.  2. — Said  Marshal  shall  have  power  to  appoint  one  or 
more  Deputy  Marshals  in  each  judicial  district  of  the  Territory, 
as  the  necessity  of  the  case  may  require,  whose  term  of  office 
shall  expire  with  that  of  the  Marshal;  but  they  may  at  any  time 
be  removed  at  his  discretion. 


14 

"Sec.  3. — It  shall  be  the  duty  of  the  Marshal,  or  any  of 
his  deputies,  to  execute  all  orders  or  processes  of  the  Supreme 
or  District  Court,  in  all  cases  arising  under  the  laws  of  the 
Territory,  and  such  other  duties  as  the  executive  may  direct,  or 
may  be  required  by  law  pertaining  to  the  duties  of  his  o^ce." 

From  the  date  of  this  act  till  the  present  time,  this  officer 
has  been  elected  as  provided  in  this  statute,  and,  until  the  case 
of  the  United  States,  vs.  McAllister  arose  in  1870,  he  has  been 
recognized  as  being  the  legal  ministerial  officer  of  the  court,  in 
the  cases  named  in  the  act,  by  every  governor,  every  legisla- 
ture, and  every  judge  on  the  bench,  without  an  exception. 

True,  some  hive  claimed  that,  under  the  7th  section  of  the 
Organic  Act,  which  is  as  follows,  the  Governor  must  nominate 
and,  by  and  with  the  advice  and  consent  of  the  Legislative 
Council,  appoint  this  officer: 

"Sec.  7. — And  be  it  further  enacted:  That  all  township,  dis- 
trict,and  county  ofRcers,not  herein  other  wise  provided  for, shall 
be  appointed  or  elected,as  the  case  may  be,  in  such  manner  as 
shall  be  provided  by  the  Governor  and  Legislative  Assembly  of 
the  Territory  of  Utah.  The  Governor  shall  nominate,  and,  by 
and  with  the  advice  and  consent  of  the  Legislative  Council,  ap- 
point all  officers  not  herein  otherwise  provided  for;  and  in  the 
first  instance  the  Governor  alone  may  appoint  all  said  ofticers, 
who  shall  hold  their  offices  untQ  the  end  of  the  first  session  of 
the  Legislative  Assembly,  and  shall  lay  off  the  necessary  dis- 
tricts for  members  of  the  Council  and  House  of  Representatives, 
and  all  other  offices." 

Of  the  above  opinion  were  Governor  Harding,  Governor 
Shaffer,  and  Gov.  Woods.  The  other  Governors,  whatever 
may  have  been  their  opinion,  have  acquiesced  in  the  election. 
I  am  ignorant  of  a  single  exception  to  this  statement. 

The  case  of  the  United  States  vs.  McAllister  arose  in  this 
Territory,  March,  1870.  This  case  was  argued  on  two 
points — 

"1.  Was  he  the  ministerial  officer  of  the  court  in  cases 
referred  in  the  act,  or  was  that  the  duty  of  the  U.  S. 
Marshall 

"2.  Should  he  be  elected  or  appointed^' 

It  was  decided  against  the  marshal.  It  speaks  for 
itself. 

I  heard  the  opinion  read, but  I  have  never  seen  it  since,  so 
I  can  not  furnish  it. 


15 

I  herewith  file  a  certified  copy  of  all  the  proceeding  in  it 
which  I  am  able  to  find  of  record.  There  was  however  a  de- 
murrer filed,  and  after  the  judgment  of  May  16,  1870,  it  was 
appealed  to  the  Supreme  Court  of  the  Territory.  And  the 
Supreme  Court  affirmed  the  judgment. 

THE  TERRITORIAI.  MARSHALSHIP. 

"/ti  the  District  Court  of  the  Third  Judicial  District  of 
the  Territory  of  TJtah^  Comity  of  Salt  Lake. 
The  United  States  of  America,  on  the  Relation  of  Joseph 
M.  Orr,  xs.  J.  D.  T.  McAllister. 

STATEMENT   ON  APPEAL, 

Be  it  remembered  that  on  the  17th  day  of  March,  1870,  the 
Relator  filed  his  complaint  in  said  Court  against  said  Respond- 
ent in  words  and  figures  following,  to  wit: 

The  United  States  of  America,  \  In  the  Third  District  Court  of 
on  the  relation  of  Joseph     J      Utah  Territory.     Regular 
M.  Orr,  \        March  term,  A.  D.  1870, 

xs.  \  Hon.  C.  C.  Wilson, 

J.  D.  T.  McAllister.  /  Judge. 

**I,  Joseph  M.  Orr,  the  above  relator,  being  first  duly 
sworn  upon  oath,  say  that  U.  S.  Grant,  President  of  the  United 
States,  by  virtue  of  the  authority  conferred  upon  him  by  law, 
on  the  28th  day  of  September,  A.  D.  1869,  suspended  Josiah 
Hosmer  from  the  office  of  Marshal  of  the  United  States  for  the 
Territory  of  Utah  until  the  end  of  the  next  session  of  the 
Senate  of  the  United  States,  and  on  said  day  designated  Joseph 
M.  Orr  to  perform  the  duties  of  such  suspended  officer,  in  the 
meantime,  and  on  the  same  day,  a  commission  duly  issued  to 
the  said  relator,  all  of  which  is  more  fully  shown  by  the  ex- 
hibit hereunto  attached,  marked  (A);  that  afterwards,  but 
several  months  previous  to  the  date  hereof,  said  Relator  duly 
qualified  himself,  according  to  law,  to  enter  upon  the  duties 
aforesaid,  by  taking  and  subscribing  the  oath,  a  certified  copy 
of  which  is  hereto  attached,  marked  exhibit  (B),  and  filing  the 
same  with  the  Clerk  of  the  Supreme  Court  of  said  Territory, 
and  also  forwarding  a  certified  copy  of  the  same  to  the 
Secretary  of  the  Interior,  and  also  by  executing  the  bond 
a  certified  copy  of  which  is  hereunto  attached  and  marked 
exhibit  (C),  whicli  bond,  was  duly  recorded  in  the  office 
of  the  Secretary  of  said  Territory;  that  by  reason  of  the 
premises  it  became  and  still  is  the  duty  and  right  of 
the  said  Relator,  under  and  by  virtue  of  the  laws  of  the 
United    States,  to    execute   all    processes   issuing  out  of  the 


1*6 

District  and  Supreme  Courts  of  said  Territory  of  Utah,  or 
directed  by  any  judge  thereof,  to  do  and  perform  all  and  singu- 
lar the  executive  business  of  said  courts,and  to  have  and  enjoy 
all  and  singular  the  fees  and  emoluments  of  the  same;  that  one 
J.  D.  T.  McAllister,  as  Territorial  Marshal  of  Utah  Territory  at 
*the  present  time,  assumes  to  have  the  right  and  authority  to  do 
and  perform  a  portion  of  the  aforesaid  duties,  devolved,  by 
reason  of  the  premises,  upon  the  said  Relator,  and  to  have  and 
receive  the  fees  and  emoluments  of  the  same;  and  the  said  J.  D. 
T.  McAllister,  so  assuming  such  right,  has,  for  several  months 
last  past  within  the  jurisdiction  of  this  court,  wrongfully,  un- 
lawfully and  without  any  legal  authority  therefor,  ex.  cuted 
most  of  thejH'ocess  of  this  court,  and  has  done  and  performed 
the  executive  business  of  the  same  in  almost  all  cases  in  which 
the  United  States  has  not  been  a  partj^,  and  has  received  to  his 
OAvn  use  almost  all  of  the  fees  and  emoluments  pertaining  to  the 
same,  in  violation  of  the  rights  of  the  said  Eelator.  And  the 
said  J.  D.  T.  McAllister,  still  assumhig  said  rights,  still  con- 
tinues, within  the  jurisdiction  of  this  Court,  wrongfully  and  un- 
lawfully and  without  any  warrant  or  authority  of  law,  to  exe- 
cute most  of  the  processes  of  this  Court,  to  do  and  perform  al- 
most all  of  the  executive  business  of  the  same,  and  to  receive 
to  his  own  use  the  fees  and  emoluments  pertaining  to  such  ser- 
vice, in  violation  of  the  rights  of  the  said  Relator. 

^'Wherefore  said  Relator  prays  that  an  information  maybe 
tiled  against  the  said  J.  D.  T.  McAllister,  according  to  law,  and 
that  he  may  by  the  Court  here  be  required  to  appear  and  show 
by  what  authority  he  does  the  matters  and  things  above  speci- 
lied. 

"The  Territory  of  Utah,         ) 

Salt  Lake  County.  j  ^'^* 

"Joseph  M.  Orr,  the  aforesaid  Relator,  being  first  duly 
sworn  upon  oath,says  that  the  matters  and  things  before  stated, 
and  to  which  he  has  subscribed  his  name,  are  true,  as  he  verily 
believes. 

"(Signed)  J.  M.  Orr. 

"Sworn  to  and  subscribed  before  me,  this  16th  day  of 
March,  A.  D.  1870. 

"S.  A.  MA]^f]s^,  Clerk. 
"(Endorsed.) 
"Dist.  Court  3rd  Dist.  Utah. 

"United  States  on  relation  of  J.  M.  Orr  ads.  J.  D.  T.  Mc- 
Allister. 

"Affidavit  of  Relator  and  Commission. 
"Filed  March  17th,  1870.  • 

^*S.  A.  Mann,  Clerk. 
"Afterwards,  to  wit,  on  the  24th  day  of  March,  A.D.  1870, 
defendant  by  his  counsel  appeared  and  filed,  with  the  Clerk  of 


17 

said  Gourtjhis  answer,  which  is  in  words  and  figures  follo"vving, 
to  "wit — 

The    U.  S.,  by  Charles  H.  Hempstead,    j  Territory  of  Utah, 
Attorney  of  the  United  States  in  the  /  Third  Judicial  Dis- 
Territory  of  Utah,  on  the  relation  of   (    trict  Court,    March 
Joseph  M.   Orr,  vs,  John  D.  T.   Mc-  /   term  1870.    Hon.C. 
Allister,  Territorial  Marshal  for  Utiih  I   C.  Wilson, 
Territory.  I  Judge. 

**Kow  comes  the  above  named  John  D.  T.  McAllister,  in 
his  own  proper  person,  and  says  he  admits  that  His  Excellency 
U.  S.  Grant,  at  the  time  and  in  the  manner  mentioned  in  the  re- 
lation herein  tiled,  suspended  Josiah  Hosmer  from  the  office  of 
Marshal  of  the  United  States  in  theTerritory  of  Utah,as  alleged, 
and  that  he  designated  and  commissioned  the  said  Joseph  M. 
Orr  to  discharge  the  duties  of  that  office  for  the  time  and  in  the 
manner  set  forth  in  the  relation,  and  that  the  said  Joseph  M. 
Orr  took  the  oath  and  gave  the  bond  required  by  law,  and  did 
and  performed  all  other  things  neccessary  to  be  performed  to 
enable  him  to  discharge  the  duties  enjoined  on  him  by  law  as. 
such  United  States  Marshal.  But  as  to  the  legal  conclusions 
draw^n  by  the  United  States  attorney  for  the  District  of  Utah  he 
refers  the  same  to  this  Honorable  Court,  without  himself  ad- 
mitting or  denying  them  or  any  of  them.  To  enable  this  Hon- 
orable Court  to  understand  and  be  informed  as  to  such  legal 
conclusions  and  rights  and  duties  of  the  said  Relator  and  of 
himself,  he  herein  states  and  informs  the  Court  that  pursuant 
to  the  Act  entitled  an  i\ct  in  relation  to  Marshals  and  Attorneys, 
approved  March  od,  1852,  and  of  the  acts  amendatoiy  thereto, 
he,  on  the  5th  day  of  January,  18C6,  was  duly  elected  by  the 
joint  vote  of  the  Legislative  Assembly  of  the  Territory  of  Utah, 
then  in  session,  to  the  office  of  Territorial  Marshal,  and  that  be- 
tween that  day  and  the  twenty-sixth  day  of  the  same  month  he 
took-  the  oath  and  gave  the  bond  required  by  law,  and  that  on 
the  said  26th  day  of  Jan.  A.D.  1866,  His  Excellency  Chas.  Dur- 
kie,  then  Governor  of  Utah  Territorj^,  issued  to  him  a  Commis- 
sion as  such  Territorial  Marshal,  which  oath,  bond,  and  com- 
mission are  now  here  to  the  Court  shown.  Afterwards  on  the 
same  day  he  entered  upon  the  duties  of  said  office,  and  he  has 
continued  to  discharge  the  duties  and  receive  the  fees  and  em- 
oluments appertaining  to  the  office  of  Territorial  Marshal  for 
Utah  Territory. 

"He  further  informs  this  Honorable  Court  that  on  the  16th 
day  of  February,  A.  D.  1870,  he  was  re-elected  to  said  office  by 
the  joint  vote  of  the  Legislative  Assembly  of  the  Territory  of 
Utah  then  in  joint  session.  And  that  afterward,  on  the  17th 
day  of  February,  A.D.  18T0,  he  took  the  oath  required  by  him 


18 

before  William  Ola vton,  a  notary  public,  and  filed  the  bond 
also  required  by  law  with  Wm.  Clayton,  Auditor  of  Public 
Accounts,  and  that  afterward,  on  the  21st  day  of  February,  in 
the  same  year,  His  Excellency  S.  A.  Mann,  Acting-Governor  of 
Utah  Territory,  issued  a  Commission  to  him  as  such  Territorial 
JVlarshal,  which  is  still  in  full  force  and  virtue;  which  oath,bond 
and  commission  is  now  here  to  the  Court  shown.  From  that 
tune  until  the  filing  of  this  relation, he  his  discharged  the  ex- 
ecutive duties  of  this  Honorable  Court  and  served  the  process 
issued  by  it — as  he  lawfully  miy  do — when  this  Honorable 
Court  has  been  exercising  its  jurisdiction  in  cases  not  arising 
under  the  Constitution  and  laws  of  the  United  States,  and  when 
it  has  not  been  exercishig  its  jurisdiction  as  a  Circuit  and  Dis- 
trict Court  of  the  United  States.  And  he  further  says  he  denies 
the  allegations  in  relation  that  he,  the  defendant,  herein  as- 
sumes at  this  thne,  or  at  any  other  time  he  has  assumed,  to 
have  the  right  or  authority  to  do  and  perform  any  portion 
whatever  of  the  duties  devolved  on  the  relator  by  reason  of  the 
premises  set  forth  in  the  relation,  or  to  receive  any  of  the  fees 
or  emoluments  of  the  o^ce  of  the  United  States  Marshal  of  the 
Territory  of  Utah.  And  he  denies  the  allegation  that  he,  this 
defendant,  i  >  now,  or  that  he  heretofore  has  been,  in  the  exer 
cise  of  any  executive  duty  of  this  Honorable  Court,  or  of  the 
Supreme  Court  of  this  Territory,  or  served  any  process  what- 
ever which  has  been  issued  by  either  of  said  Courts  or  any 
Judge  thereof,  that  could  lawfully  be  served,  or  the  duty  could 
lawfully  be  discharged  by  the  relator  as  United  States  Marshal 
for  Utah  Territory. 

"And  that  he  now  herein  disclaims, and  at  all  times  hereto- 
fore he  has  disclaimed,  all  right  in  himself  as  such  Territorial 
Marshal  to  act  as  the  executive  officer  of  the  Supreme  or  Dis- 
trict Court  when  such  Supreme  or  District  Court  is  exercising 
its  jurisdiction  as  District  or  Circuit  Court  of  the  United  States, 
or  when  they  are  exercising  the  jurisdiction  in  cases  arising 
under  the  Constitution  and  laws  of  the  United  States. 

'But  he  claims,  as  it  is  his  right  and  duty  to  claim,  that  by 
virtue  of  the  laws  of  the  United  States  and  of  the  laws  of  Utah, 
and  by  virtue  of  the  election,  oath,bond  and  commission  afore- 
said, he  has  the  right  and  it  is  his  duty  to  act  as  Territorial 
Marshal  of  Utah  Territory,  and  as  such  to  be  the  executive 
officer  both  of  the  Supreme  and  District  Courts  when  such 
Courts  are  not  exercising  their  jurisdiction  as  Circuit  or  District 
Courts  of  the  United  States,  nor  in  cases  not  arising  under  the 
Constitution  and  laws  of  the  United  States. 

He  herein  denies  that  he  now  executes  or  at  any  time  here- 
tofore he  has  executed  any  executive  duty  of  either  of  said 
Courts,  or  served  any  process  whatever,  wTongfully,  unlawfully 
or  without  legal  authority.  And,  if,  as  alleged,  he  performs 
most  all  of  th3  executive  duties  of  said  Courts  and  serves  most 


19 

till  of  the  processes,]!  is  for  the  reason  that  b}^  law  it  is  his  duty 
so  to  do;  and  now,  haA^ing  fully  answered  and  set  forth  his  war- 
rant, he  pmys  to  be  adjudged  to  continue  in  said  office. 

"(Signed)  John  D.  T.  McAlltster. 

Z.  Sxow,  xVttorney-Geneml 

for  Utah  Territory. 

Territory  of  Utah, 

Third  Judicial  District  Court  sitting  as  a 

Circuit  Court  of  the  United  States. 
"Hon.  C.  C.  Wilson,  Judge. 

"The  above  named  John  1).  T.  McAllister  makes  oath  and 
says  that  he  has  heard  the  foregoing  answer  read  and  knows 
the  contents  thereof,  and  that  so  much  thereof  as  is  set  forth 
therein  from  his  own  knowledge  is  true  and  that  which  is  there- 
in set  forth  from  information  of  others  he  believes  to  be  true. 

JoHi^  D.  T.  McAllister. 

"Subscribed  and  sworn  to  before  me,  this  24th  day  of 
March,  1870. 

S.  A.  Maxx,  Clerk. 


"(ENDORSED.) 

"The  United  States  on  the  relation  of  J.  M.  Orr,vs.  JohnD. 
T.  McAllister. 

"ANSWER. 

"Filed  March  24, 1870. 

"S.  A.  Ua-nn,  Clerk. 
"Z.  Sjtow,  Attorney-General . 

"Afterwards,  to  wit,  on  the  11th  day  of  May,  A.  D.  1870, 
during  other  proceedings  of  the  court  the  following  appears  of 
record,  which  is  in  words  following,  to  wit: 

"In  the  relation  of  J.  M.  Orr,     )      Demurrer  of  Plaintiff 
against  J.  D.  T.  McAllister.       [  sustained. 

"Affcerwards,to  wit,  on  May  12th,  1870,  during  proceedings 
of  Court,  the  following  appears  of  record,  which  in  words  fol- 
lowing is,  to  wit: 

"In  the  relation  of  J.  M.  Orr,     j      Judgment  of  Ouster 
against  J.D.T.  McAllister.       f  Entered. 

"And  ordered  by  the  Court  that  said  Kespondent  turn  over 
within  ten  days  to  the  relator  all  processes  or  other  papers  of 
this  court  now  in  his  hands,  as  well  as  property  now  in  his  pos- 
session, by  virtue  of  any  process  or  order  of  this  Coi^rt. 


20 

"Afterwards,  to  wit,  on  April  30, 1872,  during  proceedings 
of  the  Court,  the  following  appeared  of  record,  which  is  in 
words  following,  to  wit: 

Tuesday,  April  30, 1872. 

"Court  met  pursuant  to  adjournment. 

"Present  Hon.  O.  F.  Strickland,  Judge. 

"J.  L.  High,  Dept.  U.  S.  Atty. 

"A.  S.  Patrick,  Dept.  U.  S.  Marshal. 

"J.  D.  T.  McAllister,  Territorial  Marshal. 

"R.  W.  McAllister,  Deputy  Territorial  Marshal. 

'<Wm.  S.  Walker,  Clerk. 

"Z.  Snow,  Terr'l  Att'y  General. 

"Court  opened  by  the  Terr'l  Marshal. 

"Whereupon  the  Court  announced  that  the  Territorial 
Marshal  and  Territorial  Attorney-General  would  be  recognized 
as  Executive  Officers  of  this  Court  for  all  Territorial  business. 

"On  motion  of  Jas.  L.  High,  Esq.,  Deputy  U.  S.  Attorney, 
Ordered  that  a  nolle  prosequi  be  and  hereby  is  entered  as  to  all 
indictments  found  by  the  grand  jurors  of  this  Court  at  and 
since  the  Sept.  term,  1870,  thereof,  and  that  all  prisoners  held 
under  such  indictments  be  discharged.  And  that  all  prisoners 
held  under  preliminary  examination  be  transferred  by  the  U. 
S.  Marshal  to  the  Territorial  Marshal. 


"Territory  of  Utah,  \ 

County  of  Salt  Lake.         [ 


s.s 


"I,  Jos.  F.  Nounnan,  Clerk  of  Third  Judicial  District  Court 
of  Utah  Territory,  do  hereby  certify  that  the  foregoing  is  a  full, 
true  and  correct  copy  of  the  original  Complaint,  Answer  and 
Court  proceedings  in  the  above  entitled  action  on  file  and  of 
record  in  my  office. 


"Witness  my  hand  and  the  seal  of 


-  L.  S.  \  said  Court,  at  Salt  Lake  City,  this 


23rd  day  of  Oct.,  A.  D.  1873. 
Jos.  F.  Nounnan-,  Clerk. 
"By  Edvv.  B.  McKean,  Deputy  Clerk. 

By  reference  to  the  record  in  the  McAllister  case,  it  will  bo 
seen  that  Marshal  McAllister  was  ousted  May  11, 1870.  The 
case  was  taken  to  the  Supreme  Court  of  the  Territory,  where, 
in  the  fell  of  that  year,  the  judgment  was  affirmed. 

Before  the  argument  in  the  case,  and  in  my  case  in  which 
the  same  principles  were  involved,  it  was  agreed  between  the 
United  States  Attorney  and  myself,  that  both  be  argued  to- 
gether. Judgment  in  one  to  be  given,  and  from  that  an  appeal 
to  be  taken  to  the  Supreme  Court  of  the  United  States,  the 


21 

judgment  in  the  other  to  abide  the  result  of  the  appealed  case. 
But  when  the  Court  here  rendered  judgment,  it  did  so  in  both 
cases.  I  then  sought  the  papers  in  the  McAllister  case,  with 
intent  to  appeal  it,  but  could  uot  find  the  files.  They  have  not 
yet  been  found.  I  thereupon  went  to  the  District  Court,  and 
obtained  copies  of  all  I  could  there  find. 

By  a  farther  reference  to  this  record,  it  will  be  seen  that  on 
April  30th,  1872,  Marshal  McAllister  and  myself  were  again 
recognized  as  Territorial  officers.  But  it  was  by  the  District 
Judge  in  the  District  Court.  This  was  informal.  The  judgment 
in  the  Supreme  Court  of  the  Territory  in  that  case  was  unrevers- 
ed, though  the  principle  governing  it,  and  upon  which  the  court 
acted  was  overruled  by  the  Supreme  Court  of  the  United  States 
in  the  Clinton  and  Englebrecht  case.  That  left  the  District 
Court  without  a  ministerial  officer,  unless  Marshal  McAllister 
was  recognized  by  virtue  of  this  informal  reinstatement.  The 
Governor  was  not  authorized  to  fill  the  vacancy.  No  method 
was  found  to  fill  it.  It  is  this  which  is  in  the  way  of  obtaining 
a  jury. 

From  May  11th,  1870,  to  April  30th,  1872,  the  United  States 
Marshal  acted  as  the  ministerial  officer  of  the  Court. 

Since  April  30th,  1872,  there  has  not  been  any  Legislative 
Assembly,  so  until  now  it  has  been  impossible  to  correct  this 
matter. 

It  is  a  necessity  to  fill  that  office,  or  legislate  so  as  to  remove 
the  obstacle.  It  is  a  matter  of  no  consequence  where  or  how 
or  what  the  action  was  that  caused  this  state  of  affairs.  We 
are  'in  it,  we  must  get  out  some  way,  and  no  branch  of  the 
government  can  help  us  out  but  the  Governor  and  Legislative 
Assembly. 

I  sought  to  obtain  a  Grand  Jury  in  the  Third  Judicial 
District,  in  September,  1872,  in  March  and  in  September,  1873, 
but  failed.  I  herewith  file  a  printed  statement  of  the  matter  at 
the  September  term,  1873,  which  I  presume  is  correct: 

^'THIRD  DISTRICT  COURT,  McKEAN,  C.  J.,  PRESIDING. 

^^TuESDAY,  October  20, 1873. 
"Court  met  at  10  o'clock  a.m. 
^'Some  exparte  motions  were  disposed  of,  after  which  the 


22 

clerk  called  the  names  of  the  grand  jurors.  Fourteen  answer- 
ed, and  as  fifteen  are  required  to  complete  the  panel,  one  of  the 
petit  jurors  was  drawn — under  the  statutes — to  till  the  vacant 
place. 

"Mr.  William  Gary,  IT.  S.  District  Attorney  for  the  Terri- 
tory,  submitted  the  following  challenge  to  the  array  of  the^ 
jury: 

"United  States  of  America,  ) 
Territory  of  Utah.  f 

"In  the  District  Court  of  the  Third 
Judicial  District  of  said  Territory. 

"Now  comes  William  Gary,  United  States  Attorney  for 
said  Territory,  before  the  swearing  of  the  persons  in  the  jury 
box,  and  challenges  the  panel  of  the  so  called  grand  jury  sum- 
moned to  appear  at  the  present  term  of  this  court,  and  now 
moves  to  quash  the  same,  and  for  grounds  of  motion  assigns  as 
follows: 

"First — Because  the  laws  of  Utah  have  not  been  complied 
with  in  many  respects  in  selecting  said  jurors,  as  will  be  seen 
by  the  court  by  reference  to,  and  examination  of,  the  venire, 
and  the  returns,  certificates  and  documents  accompanying  the 
same. 

^* Second — Because  they  were  not  summoned  by  the  United 
States  Marshal,  and  therefore  cannot  lawfully  take  cognizance 
of  offences  against  the  United  States. 

"Third — The  2)ersons  now  in  court  were  not  summoned  by 
any  officer,  but  by  John  D.  T.  McAllister,  a  jmvate  citizen,  the 
said  McAllister  having  been  ousted  from  the  office  of  Territoral 
Marshal  by  the  judgment  of  this  court,  rendered  May  4th,  1870, 
the  Honorable  Chief  Justice  AVilson  then  presiding,  which 
.judgment  Avas  aft(^rwards  affirmed  by  the  Superior  Court  of 
the  Territory,  and  has  never  been  reversed. 

"Willia:^!  Gary, 
"Att'y  of  the  U.  S.  for  U.  T. 

"The  challenge  was  argued  briefly  b}^  Mr.  Gary  in  support 
of  his  motion,  and  Territorial  Attorney  General  Snow  for  the 
People. 

"McKean  announced  that  he  would  render  a  decision  at 
four  o'clock  in  the  afternoon. 

"After  making  some  preliminary  remarks  concerning  the 
challenge  to  the  army  of  the  gmnd  jury,  entered  in  the  morn- 
ing, McKean  delivered  his  decision  thereon  verbally,  which  in 
substance  was  follows: 

"It  had  been  admitted  by  the  counsel  on  both  sides  that 


23 

two  of  the  persons  summoned  to  serve  as  jurors  were  incompe- 
tent, for  that  they  were  not  citizens,  having  rnly  received  their 
first  papers,  but  before  discharging  them  on  that  account  the 
judgv.  o  u  .  vx.anine  the  question  very  thoroughly-  and  if 
they  were  entitled  to  become  citizens  he  would  probably  admit 
them  at  once,  and  thus  do  away  with  that  objection.  One  of 
the  U.  S.  District  Attorney's  objections  was  that  the  venire  had 
not  been  issued  thirty  days  prior  to  the  term  of  court,  but  that 
provision  of  the  statute  the  judge  considered  directory,  and  he 
would  not  sustain  the  challenge  on  that  ground.  Another 
point  raised  by  the  attorney  was  that  the  occupations  of  the 
jurors  had  not  been  given  in  the  certificates  of  the  clerks  of  the 
counties  from  which  they  had  been  drawn,  but  that  he  should 
also  overrule.  He  w\as  not  disposed  to  decide  on  any  of  the 
points  mised  in  the  first  cause  of  the  challenge.  "^^  Vig. 

**The  second  cause  for  the  challenge  was  because  me 
jurors  had  not  been  summoned  by  the  U.  S.  Marshal.  The 
judge  said  that  in  the  early  days  of  the  Territory,  when  Brig- 
ham  Young  was  Governor,  and  Judge  8now  was  on  the  bench, 
the  U.  S.  Marshal  served  all  processes  from  the  District  Courts; 
and  for  one  and  a  half  years  he  (McKean),  ordered  the  clerk  of 
his  court  to  issue  venires  for  juries  to  the  United  States  Mar- 
shal. His  associates  did  the  same  in  their  districts,  and  in 
doing  so  they  followed  the  example  of  their  predecessors. 
Under  the  acts  of  Congress  the  (ilerk  was  forbidden  to  issue  a 
venire  until  ordered  to  by  tlie  judge.  He  formerly  acted  under 
the  laws  of  Congress.  In  the  ICnglebrecht  case  the  Supreme 
Court  of  the  United  States  had  decided  that  the  United  States 
Marshal  was  not  the  proi)er  officer  to  summon  a  jury  to  try 
cases  arising  under  the  laws  of  the  Territory,  and  he,  McKean, 
humbly  bowed  to  the  decision;  but  the  Supreme  Court  had  not 
overruled  the  decision  ousting  McAllister  from  the  office  of 
Territorial  Marshal.  AVhile  ihc  Englebrecht  decision  said  it 
was  not  lawful  for  the  United  St^Ucs  Marshal  to  summon  juiies, 
it  did  not  say  that  McAl]ist(^r  was  the  j^roper  person  to  do  eo. 
The  Supreme  Court  had  held  that  the  acts  of  Congress  did  not 
govern  the  courts  of  the  Territoiies,  but  that  the  laws  of  the 
Territories  governed  the  courts.  Since  that  decision  he  had 
obeyed  it  strictly.  Had  not  ordered  the  clerk  to  issue  a  venire, 
for  the  law  compels  him  to  do  that.  '1  lie  judge  had  apportioned 
juries  to  six  counties,  because  the  Territorial  law  gave  him 
that  power,  but  further  than  that  he  had  not  interfered  in  the 
matter.  Efforts  had  been  made  to  induce  him  to  again  act  un- 
der the  laws  of  Congress,  but  he  had  always  refused.  The 
law  said  that  the  clerk  should  issue  the  venire  to  the  Terri- 
torial Marshal,  and  if  McAllister  was  that  officer  the  clerk  had 
done  his  duty;  anyhow  the  clerk  could  not  issue  it  to  the  U.  S. 
Marshal.  It  looked  to  the  judge  very  much  as  if  the  legisla- 
ture had  done  all  it  could  to  oust  the  U.  S.  Marshal.    Members 


of  the  bar  might  say  affairs  were  in  a  vexing  dilemma,  but  they 
could  not  be  helped,  the  courts  were  not  the  legislatures. 

He  next  went  to  the  third  point  of  the  challenge,  that  the 
jurors  were  not  summoned  by  any  officer  but  by  a  private  citi- 
zen. If  in  deciding  the  Englebrecht  case  the  Supreme  Court 
had  gone  further  and  said  that  McAllister  was  the  proper  per- 
son to  serve  processes  in  the  District  Court,  then  the  difficulty 
w^ould  have  been  settled;  but  the  judge  did  not  understand  that 
the  decision  said  tint  McAllister  was  the  proper  officer.  Many 
were  of  the  opinion  that  McAllister  was  not  a  legal  officer  for 
two  reasons,  first,  that  the  legislature  had  no  right  to  cre- 
ate the  Oifice:  and  second,  after  creating  it,  it  could  not  be 
filled  except  on  the  nomination  of  the  governor.  While  he 
was  now  of  the  opinion  that  he  had  been  wrong  in  holding 
that  the  legislature  had  not  the  right  to  create  the  office,  he 
was  also  of  the  opinion  that,  had  the  case  of  Orr  vs  McAllister 
been  carried  to  the  Supreme  Court  of  the  United  States, 
that  tribunal  would  have  held  that  the  office  of  Territorial  Mar- 
shal must  be  filled  by  the  nomination  of  the  governor. 

"He  would  be  glad  if  he  could  hold  one  term  of  court 
without  having  such  vexed  questions  to  pass  upon;  but  he 
supposed  it  could  fiot  be  so.  He  sometimes  erred  in  his  judg- 
ments, but  he  was  consoled  by  the  fact  that  in  States,  where  the 
judges  were  learned  in  the  lawand  where  almost  everything  was 
done  by  precedent,  errors  were  sometimes  committed.  A  grand 
jury  in  a  Territory  had  a  two-fold  duty  to  perform — to  investi- 
gcite  crimes  against  the  laws  of  the  Territory,  and  also  those 
against  the  United  States.  He  could  conceive  of  a  case  where 
the  jury  would  be  illegal  for  the  United  States  and  legal  for  the 
Territory.  Mr.  Carv  had  challenged  on  behalf  of  the  United 
States,  and  not  for  tlie  Territory.  The  jury  might  be  held  to 
investigate  crimes  agains  the  Territory,  but  no  sooner  would  an 
indictment  be  presesitt^d  than  the  attorney  for  the  indicted  party, 
if  he  did  his  duty,  would  challenge  the  array  of  the  jury  and 
raise  the  same  questions  raised  by  Mr.  Cary.  He  felt  different- 
ly when  it  came  to  the  question  of  the  life  or  liberty  of  a  person 
than  he  did  on  the  trial  of  a  civil  case.  If  the  gentlemen  were 
willing  to  raise  no  objections  to  a  petit  jury,  and  were  willing 
to  have  their  suits  tried  by  twelve  men,  he  would  not  object; 
but  in  regard  to  the  grand  jury  he  felt  he  would  not  be  doing 
his  duty  if  he  did  not  discharge  it.  He  would  therefore  sus* 
tain  the  challenge,  and  say  to  the  jurors  "you  are  discharged." 
"Judge  Snow  informed  the  jurors  that  the  Territorial  Marshal 
would  pay  them  for  expenses  in  coming  from  and  returning  to 
their  honies.  Time  wcoi  given  him  to  examine  into  the  subject 
and  to  conclude  whether  he  would  appeal  from  the  decision  of 
the  court  in  discharging  the  jurors  or  not. 

"Court  adjourned  till  Wednesday  morning  at  10  o'clock." 


25 

A  grand  jury  was  called  in  the  Second  Judicial  District  in 
June,  1873,  and  in  the  First  Judicial  District  in  the  fall  and 
winter  of  the  same  year.  In  each,  indictments  were  found. 
One  man  is  in  the  Penitentiary  under  sentence  for  thirty  3^ ears, 
sentenced  on  the  indictment  so  found.  Others  are  yet  pending. 
I  therefore  think  I  ought  to  be  excused  from  expressing  a 
more  definite  opinion. 

In  my  judgment  it  is  a  rightful  subject  of  legislation  in  this 
Territory  to  limit,  fix,  and  set  reasonable  ;bounds  to  judicial 
authority  in  this  Territory,  and  regulate  the  mode  of  procedure, 
both  at  law  and  in  equitj',  including  the  mode  and  manner  of 
appeals  from  one  court  to  another,and  to  provide  officers  either 
by  election  or  appointment.  If  the  Supreme  Court  of  the 
United  States  shall  rule  against  the  civil  and  criminal  jurisdic- 
tion of  the  Probate  Courts,  then  our  code  will  need  modifjdng 
so  as  to  permit  appeals  from  Justices  of  the  Peace  to  the  Dis- 
trict Courts. 

As  to  the  act  of  Congress  referred  to,  I  have  only  to  add 
that  no  act  of  any  State  or  Territory  is  necessary  in  aid  of  an 
act  of  Congress. 

Every  statute  of  a  State  or  of  a  Territor}^  in  aid  of  an  act 
of  Congress,  or  to  hinder  or  delay  its  operation,  is  unconstitu- 
tional and  void.  But  this  remark  is  not  designed  to  apply  to  a 
statute  that  only  incidentally  effects  it. 

As  to  crimes  that  go  unpunished,  I  have  to  ^ay  if  the  Pro- 
bate Courts  have  notcriminal  jurisdiction,  and  if  the  Territorial 
government  can  not  confer  it,  and  if  the  Districts  Courts  set 
aside  the  juries,  the  officers  of  the  law  may  be  excused  if  crimes 
go  unpunished. 

As  there  is  a  difference  of  opinion  about  the  elect wn  and 
appolniniint  of  certain  officers,andas  I  have  formed  an  opinion 
for  myself,  I  will  jn'oceed  to  x)resent  it. 

The  seventh  section  of  the  Organic  Act,  as  above  quoted, is 
ambiguous  in  its  terms,  and  for  that  reason  admits  of  constnic- 
tion  or  interpretation. 

The  act  as  a  whole  was  designed  to  prepare  for  a  State  to 
be  admitted  into  the  Union, and  therefore  should  at  all  times  be 
construed  with  reference  to  that  object.  It  gave  full  powers  of 
legislation,  subject  to  only  a  few  inhibitions,  and  subject  to 
the  supremacy  of  the  United  States  to  be  exercised  by  a  disap 
proval  of  the  laws  enacted. 


20 

It  provided  for  a  Governor,  a  secretary,  three  judges,  an 
attorney  and  a  marshal  of  the  United  States,for  a  legislative  de- 
partment, and  for  a  delegate  in  Congress.  With  such  an  act 
for  such  an  object  it  is  easily  to  be  perceived  that  many  officers 
were  to  be  provided  for,  not  therein  named;  hence  the  seventh 
section  of  the  act  was  introduced. 

The  first  clause  of  this  section  includes  in  terms  all  town' 
s7ilp,  district,  and  county  officers,  and  these  by  the  express 
language  used  may  be  elected  or  appointed  a-s  may  be  provided 
by  law.  The  next  clause  includes  all  officers  not  provided  for, 
and  these  shall  be  nominated  and,  by  and  with  the  advice  and 
consent  of  the  council,  appointed.  Here  it  will  be  seen  by  the 
words  all  officers  is  included  the  township,  county,  and  dis 
trict  officers  which  are  in  the  first  clause.  Therefore  there  must 
be  some  implied  exceptions  to  the  last  clause. 

Those  who  maintain  that  the  Governor  must  nominate  are 
forced  to  introduce  in  this  clause  the  words— "with  the  excep- 
tion of  township,district,and  county  officers,"  so  as  to  make  the 
language  of  the  last  clause  read  thus,  "And,  witli  [lis  exception 
of  toioRsMp^  district  and  county  officers,  the  Governor  shall 
nominate  and,  by  and  with  the  advice  and  consent  of  the  legis- 
lative council,  appoint  allofficzrs  not  herein  otherwise  provid- 
ed for,"  or  they  must  introduce  other  equivalent  words  in  the 
same  or  some  other  part  of  the  section.  This  exception,  how- 
ever, is  not  in  the  statute  in  terms;  if  there  at  all,  it  is  implied. 
Still,  if  these  words  were  in  the  tyrms  of  the  section,  it  would 
not  render  the  statute  unambiguous.  As  there  is  hot  any  legal 
unambiguous  d  ^flnition  of  the  word  district,  which  is  included 
in  the  first  clause,  with  their  construction,  it  would  have  to  be 
introduced  in  the  exception  to  the  last  clause.  I  have  before 
said  the  section  requires  a  construction  or  interpretation. 

So  those  who  maintain  that  the  officers  may  be  appointed 
or  elected,  are  necessarily  forced  to  find  a  solution  of  the  ques- 
tion. 

They  claim  that  as  the  questions  arising  out  of  it  are  of  a 
political  nature,  involving  the  police  power  of  the  Territory,  it 
is  one  properly  submitted  to  the  political  bmnch  of  the  govern- 
ment, which  is  the  Governor  and  Legislative  Assembly,  and 
that  as  some  exceptions  or  words  arc  implied,  and  must  be  so 
implied,  it  is  tlieir  right  to  supply  this  omission. 


27 

The  section  may  be  read  with  equal  plausibility  as  fol- 
lows— 

That  all  townsliip^  district  and  county  officers,  not  herein 
otherwise  provided  for,  shall  be  appointed  or  elected,  as  the 
case  may  be,  in  such  manner  as  shall  be  provided  by  the  Goy- 
ernor  and  Legislative  Assembly. 

The  governor  shall  nominate  and,  by  and  with  the  advice 
and  consent  of  the  Legislative  council,  appoint  all  officers  not 
herein  otherwise  provided  for,  wliicli^hy  law  are  required  to  he 
thus  appointed,  or  equivalent  words  in  some  other  part  of 
the  section. 

One  of  these  implied  clauses  will  restrict  legislative  power. 
The  other  does  not  enlarge  it;  but  if  it  did  it  harmonizes  with  the 
rules  of  construction. 

In  construing  the  powers  of  Congress,  under  the  Constitu- 
tion of  the  United  States,  the  rule  is — as  these  powers  are  all 
delegated — none  is  given  except  what  is  expressed, and  what  is 
necessarily  implied  in  what  is  expressed.  In  construing  State 
legislative  powers  under  their  constitutions,  every  power  is 
held  to  be  given,  excejjt  those  expressly  prohibited,  or  neces- 
sarily implied  prohibition  in  what  is  expressed. 

If  I  am  correct  in  holding  to  the  same  rule  in  a  Territory 
as  in- a  State,  the  legislative  power  is  over  this  subject,  because 
not  prohibited. 

This  view  hannonizes  with  the  language  of  section  6,  latter 
clause— "All  laws  passed  by  the  Legislative  Assembly  and  the 
Governor  shall  be  submitted  to  the  Congress  of  the  United 
States,  and  if  disapprov(  d  shall  be  null  and  of  no  effect.^^ 

This  clause  is  equal  to  saying  shall  be  elfectual  if  not  dis- 
ai)proved.  It  also  harmonizes  with  the  opinion  of  the  Supreme 
Court  of  the  United  States  in  the  Clinton  and  Engelbrecht  case 
and  in  my  case. 

Again,  I  have  said  it  is  ambiguous  in  that  the  section  con- 
tains the  word  district  in  connection  with  the  words  township 
and  County  officers. 

Township  and  county  are  words  well  understood,  embrac- 
ing subdivisions  of  a  State  or  of  a  Territory,  but  the  word 
district,  as  the  law  now  stands,  has  no  delinite  signilication,  so 
I  will  examine  its  meaning. 

Wharton  defines  "district"  to  be  "a  circuit  within  which  a 
person  may  be  compelled  to  appear." 


28 

Wharton's  L.  D.  p.  239. 

This,  then,  may  be  the  whole  Territory,  or  a  certain  part 
less  than  the  whole. 

Bouvier  says,  "It  is  a  certain  portion  of  the  country, 
separated  from  the  rest  for  some  special  purpose."  I  Bouvier 
L.  D.  p.  438.  This  makes  it  less  than  the  whole,  with  an  exten- 
to  be  defined  by  law.  It  may  be  a  county,  a  city,  a  township, 
a  school  or  an  election  district. 

Burrill  is  more  lengthy.  He  says,  "It  is  derived  from  the 
Latin  word  districtus,  districtoL  From  destringere,  signifying 
to  distrain.  Law  YveTic'h,  distress 3,  from  dlstreindreto  distrain. 
In  old  law  a  circuit  or  Territory  within  which  the  power  of  dis- 
training or  other  coercive  authority  might  be  exercised."  I  Bur- 
rilFs  L.  D.  384.  Burrill  proceeds  and  says,  "In  modern  law,  a 
portion  of  territory  (as  of  a  State,  county,  city,  or  town) defined 
by  law,  within  which  a  certain  jurisdiction  or  authority  maybe 
exercised,  a  civil  division  of  a  State  or  county  for  judicial  or 
other  purposes;  any  limited  extent  of  territory.  By  successive 
extensions  of  meaning  this  word  has  gradually  lost  its  original 
and  peculiar  signification  and  is  now  constantly  used  in  ordi- 
nary language  to  denote  any  extent  of  territory  for  any  pur- 
pose." 

Webster  (see  this  word  in  Webster's  Unabridged  Diction- 
ary), after  giving  its  derivation  as  Burrill  says,"  All  that  space 
vdthin  which  the  lord  has  the  power  of  coercing  and  punish- 
ing. 

"A  defined  portion  of  a  State  or  city  for  legislative,  judi- 
cial, fiscal  or  elective  purposes. 

"Any  portion  of  territory  of  undefined  extent,  a  region,  a 
country. 

With  these  definitions,  then,  it  maybe  and  for  some  pur- 
poses it  is  the  whole  Territorj^,  as  for  instance  the  election  of  a 
delegate  to  Congress,  the  exercise  of  Gubernatorial  or  Legisla- 
tive power,  the  exercise  of  judicial  power  bv  the  Supreme 
Court.  For  other  purposes  it  is  a  subdivision  of  the  Territory, 
as  for  instance  the  election  of  members  to  the  Legislative  As- 
sembly, the  exercise  of  judicial  power  by  the  District  Courts 
and  the  Probate  Courts.    Then  follow  the  County  Courts,  in 


29 

their  sphere  of  action,  and  so  on.  But  none  are  districts  until 
defined  by  law.  When  therefore  any  law  is  passed  by  the 
Governor  and  Legislative  Assembly  defining  a  di strict, wheiher 
that  be  the  whole  Territory  or  a  sub-division  of  it,  it  becomes  a 
district  within  the  meaning  of  that  word,  and  by  the  express 
language  used  the  officers  may  be  elected  or  ax)pointed  as  the 
law  may  provide. 

How,  then,  stands  this  question'^ 

In  1852  the  Governor  and  Legislative  Assembly  passed  a 
law  providing  for  an  Attorney-General  and  a  Marshal  to  be 
elected  by  the  joint  vote  of  both  Houses.  Under  this  law  these 
officers  have  been  elected  from  that  timb  till  the  present,  and 
until  about  1862  or  1863  no  Go^'ernor  raised  an  objection. 
Then  one  raised  the  objection,  but  the  Legislative  Assembly 
stood  firm.  From  that  time  till  1870  it  was  acquiesced  in  by 
the  Governors,  each  of  whom  had  the  same  but  no  more  legal 
authority  than  those  who  have  since  presided.  In  1870  the 
Courts  here  ruled  against  this  law. 

In  1873  the  Supreme  Court  of  the  United  States,  having 
the  law  under  consideration,  held  it  valid,  saying,  '^The 
Organic  Act  is  susceptible  of  a  construction  that  will  avoid 
such  a  conflict.  And  that  construction  is  supported  by  long 
usage  in  this  and  other  territories.  Under  these  circumstances 
it  is  the  duty  of  the  court  to  adopt  it  and  declare  the  Territorial 
Act  valid."  If  I  am  correct  in  saying  the  judgment  of  a  court 
of  last  resort  is  conclusive,  has  not  this  act  been  declared 
valid  ? 

In  concluding,  allow  me  to  suggest  that  the  judicial  de- 
partment is  all  important.  It  is  that  branch  in  which  chietiy 
lies  the  sanction  or  vindication  of  the  law  and  nothing  can 
compensate  for  its  loss,  or  the  impairment  of  its  efficiency. 

The  feet  that  it  sometimes  commits  an  error  only  shows 
that  the  judges  are  men. 

Legislative  acts  are  constantly  coming  under  their  scrutiny 
and  are  being  held  void  because  they  conflict  with  the  Consti- 
tutions of  their  States  or  with  the  Constitution  of  the  United 
States,  and  the  supremacy  of  the  General  Government. 


30 

The  importauce  of  this  subject,  with  the  long  continuance 
of  its  agitation  and  the  interest  excited,  is  my  excuse  for  the 
length  of  this  communication. 

Your  most  Obedient  Servant, 

Z.  Snow. 


>^-^m< 


In  last  paragraph,  page  6,  instead  of  12  Howe  pp.  48,  read  12  Howe 
pp.  4— S. 


